Janet Smith on the Right to Privacy

How Bad Laws Allowed the Culture of Death

By Annamarie Adkins

Dr. Janet E. Smith

ST. PAUL, Minnesota, OCT. 17, 2008 (Zenit.org).- Most Americans, even Catholics, probably take it for granted that the U.S. Constitution protects their right to privacy. But they may be surprised to find out that no such right is in the Constitution.

Furthermore, the advent of the right to privacy in American constitutional law built a foundation for the culture of death to thrive in this country, according to philosopher Janet E. Smith.

To diagnose the problem further, Smith has written “The Right to Privacy” (Ignatius). In the book, Smith discusses how Pope John Paul II’s encyclical “Evangelium Vitae” properly identifies the philosophical views that led to the invention of the right to privacy as we know it, as well as how it was used to advance the culture of death.

She shared with ZENIT how the so-called right to privacy has vitiated any sense that there is an objective truth that must govern human behavior.

Smith holds the Father Michael J. McGivney Chair of Life Ethics at Sacred Heart Major Seminary in Detroit, and is professor of Moral Theology at the Seminary; she is Visiting Scholar at St. Paul Seminary in St. Paul, Minnesota, for the fall of 2008.

She is also co-author with Christopher Kaczor of "Life Choices, Medical Issues; Questions and Answers for Catholics (Servant, 2007), and author of the CD series "Sexual Common Sense".

Q: What is the so-called right to privacy you describe in the book? On what is it based?

Smith: The “right to privacy,” when originally formulated, referred to the right to have such things as one’s journal or conversations kept private.

But during the 1960s the courts invented a whole new meaning for the right to privacy. They were attempting to find some basis on which they could overturn laws against the sale, distribution and use of contraception.

For nearly a century many states and the federal government had laws against contraception. Planned Parenthood assiduously challenged those laws, but they were repeatedly affirmed by legislatures and courts.

In 1965, in Griswold v. Connecticut, the Supreme Court found constitutional protection for the sale, distribution and use of contraceptives -- by married couples. As is well known, there is no right to privacy in the constitution nor were the justices clear on which amendment implied a right to privacy that would guarantee access to contraception.

Two short years later, the court expanded that right to the use of contraceptives by the unmarried. In 1973, the court found that the right to privacy extended to the right to have an abortion. There, too, laws of all 50 states were overturned by the votes of a few justices.

The right to privacy has become a very elastic right; it has been used to legalize contraception, abortion, assisted suicide and homosexual acts.

Virtually no one can give a coherent explanation of what this right is and what it legitimately protects. It has become a wild card that permits the courts to advance a very liberal -- not to say libertine agenda -- often overriding the decisions of state legislatures and courts.

Q: You use the right to privacy to substantiate a claim of "Evangelium Vitae." Can you please explain what light Pope John Paul II's encyclical sheds on how the right to privacy has advanced the culture of death?

Smith: “Evangelium Vitae” identifies the deeper philosophical assumptions that underline the enshrinement of the right to privacy.

It points to a whole set of “isms”: subjectivism, relativism, materialism and hedonism, for example. It explains how the modern world operates with a distorted view of freedom.

“Evangelium Vitae” states that we have become a culture that no longer believes in objective truth. That we are a culture that thinks the subjective views, even preferences and whims of individuals should be the norms that guide their lives. This leads to relativism and ultimately to the violation of the rights of the weak by the strong.

My book argues that various court decisions have verified that claim. I trace the use of the right to privacy in various court cases to demonstrate how the right to privacy eliminates any sense that there is an objective truth that must govern human behavior.

The famous “right to liberty clause” in Planned Parenthood vs. Casey clearly is driven by subjectivism. It states; “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life.”

This claim was made in the context of trying to avoid the question of establishing when human life begins. On its face, it is very appealing to Americans – but to speak of a “right to define existence” vitiates any responsibility we have to “discover reality” and live in accord with it.

The courts are gradually undercutting their ability to uphold any laws, for if life begins whenever anyone says it does and means whatever anyone says it does, how can the court deny people the “right” to kill their infants, newborns or toddlers?

Clearly in those instances, we still think we have some objective criteria for denying parents the “right” to kill their children but the logic of the court is veering in the direction of pure legal positivism -- there is no transcendent source of rights besides what the law posits.

That leaves governments free to bestow or remove any rights they so please. It destroys the concept of universal, fundamental human rights.

Q: What benefit does “rights language” bring to political discourse? If it is so flawed, why has the Church adopted it?

Smith: In “Evangelium Vitae,” John Paul II applauds rights language for its universality; he notes that we now have many statements of universal human rights.

To have traction, those statements must assume a universal human nature and objective moral norms; otherwise, how can any nation or international body insist that other nations respect certain freedoms as fundamental human rights?

Rights language is flawed if it is invoked without any clear concept of what is the source of rights. Is God the source of rights? Nature? Government? What are the limits to our rights? In fact, what are our rights?

How can we speak of a right to abortion since abortion takes a human life? “Evangelium Vitae” speaks of a culture that has so lost sight of objective truth that it now honors as rights what were once -- and rightly -- thought to be crimes: abortion, assisted suicide and pornography, for instance.

Q: One of your criticisms of the right to privacy, and some of the other rights it spawned, is that it is not found anywhere in the U.S. Constitution. But I certainly have the right to choose my own wardrobe, eat breakfast, read the newspaper, and engage in other activities that are not in the Constitution. That being the case, why don't persons have a right to something as obvious as privacy?

Smith: No one is denying that there are actions that are rightly private and bear no intervention by the state. The state certainly shouldn’t be telling us what to eat for breakfast or what newspaper to read.

(It would be marvelous if people had a greater sense of privacy for that would likely lead to more modesty in dress and less exhibitionism of the details of celebrities’ lives and all sorts of inappropriate sharing of the personal data on the Internet.)

But if actions seriously impact upon the rights of others and sometimes our own well-being, the right to privacy cannot rightly be invoked to protect those actions. We have a culture that is fairly schizophrenic on these matters.

In cars, we must wear seatbelts and on motorcycles we must wear helmets and our homes must meet all sorts of safety codes; there are drugs that we cannot use because various agencies deem them unsafe.

But we are allowed to kill the unborn and in some states to request drugs that will kill us. There is no coherence in these laws.

Q: In your book you state that you are not going to discuss whether there should be laws against contraception, abortion, assisted suicide and homosexuality. Why don’t you take a position on that?

Smith: I am certainly not a libertarian, but I do subscribe to the position that it is best to have as few laws as possible.

The goal of life on a natural plane is to become as virtuous as possible; the goal of life on a supernatural plane is to become as holy as possible. Virtue and holiness can only be gained through free and not coerced choices. Indeed, a virtuous populace needs fewer laws, for their virtue will keep them from harming others.

Nonetheless, law is certainly necessary both to protect innocent people from harm by the evil people and to help lead everyone to virtue. Certainly actions that do great harm to others must be illegal or the state is not doing its job.

It is not the job of the state to eliminate all vice, though it may want to discourage vice by means of various public programs, such as those that alert the public to the dangers of some types of behavior.

It was beyond the scope of my book to discuss what ways the state might best work against the various evils currently protected by an erroneous understanding of the right to privacy.

The purpose of my book is to show that “Evangelium Vitae” properly identifies the philosophical views that led to the invention of the right to privacy as we know it, as well as its use in advancing a culture of death.

The intention to lead man to virtue is not a moral defect in itself, it is, in fact, another virtue. However, as one goes about this task, one has to (1) have a proper concept of virtues and (2) lead by moral means. The Soviets and the Nazis lacked both.

That puts a bracket on what laws are good laws, but it does not exclude coercion altogether. Any law is by definition coercion. The current system is such that law is something that comes from the state, so in that sense any law is also “statist”, although I would agree that almost any form of customary law is better compared to what we have.

Abortion and euthanasia are thus crimes which no human law can claim to legitimize. There is no obligation in conscience to obey such laws; instead there is a grave and clear obligation to oppose them by conscientious objection.

The Wall Street Journal once printed an article titled the "Dutch Way of Death". The Dutch had a murder rate six times that of the U.S.

Nonsense. A law against assault, for example, is not "coercion" -- self-defense is not coercive, but rather the exercise of a natural right, and making it a matter of law is simply delegation to the state as one's agent for exercising that right.

29
posted on 02/21/2009 8:38:35 AM PST
by steve-b
(Intelligent design is to evolutionary biology what socialism is to free-market economics.)

Still, a murderer is coerced — rightly — from doing more murdering. The questin is not whether a law coerces but does the coercion improve things for the common good, - as I said in the post you are responding to.

"the Right to Privacy... they may be surprised to find out that no such right is in the Constitution.

The right is explicitly acknowledged in the 4th Amend. The initial phrase in the 4th refers specifically to the right: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,..."

"Smith: The right to privacy, when originally formulated, referred to the right to have such things as ones journal or conversations kept private."

This is ridiculous, since they explicitly included persons, houses and effects. The right extended to everything, not just one's journal, or conversations.

"In 1965, in Griswold v. Connecticut, the Supreme Court found constitutional protection for the sale, distribution and use of contraceptives"

"Although the Bill of Rights does not explicitly mention "privacy", Justice William O. Douglas wrote for the majority that the right was to be found in the "penumbras" and "emanations" of other constitutional protections. Justice Arthur Goldberg wrote a concurring opinion in which he used the Ninth Amendment to defend the Supreme Court's ruling. Justice John Marshall Harlan II wrote a concurring opinion in which he argued that privacy is protected by the due process clause of the Fourteenth Amendment. Justice Byron White also wrote a concurrence based on the due process clause."

The only Justice to get it right was Potter Stewart. "Justice Stewart famously called the Connecticut statute "an uncommonly silly law", but argued that it was nevertheless constitutional."

"I already explained that self-defense has nothing to do with coercion."

It usually does. Attackers are certainly coerced by being engaged by an effective self defense.

"...fluent in the English language"

Try the word justified and consider the concept behind it. The coercion inovlved in mounting an effective self defense is justified, whereas the mounting of an assault, battery, or attempt or threat to murder is not.

Surely, the 4th amendment establishes due process. Let us say a law against contraception is enacted. The 4th amendment will still not allow the cops to search for condoms in bedside drawers; but the prescribing, sale and advertising of contraception will be restricted or completely banned.

It is no different from the current laws against some recreational drugs, or against some pornography. The 4th amendment does not invalidate these laws. If the right to privacy as enshrined in the constitutional penumbras meant what Griswald decided, we would not have laws against cocaine, child pornography, or prostitution, all activities similarly private.

No. That's a job for the legislatures and courts empowered by the Constitution.

"The 4th amendment will still not allow the cops to search for condoms in bedside drawers"

It sure does allow it. The 4th even specifies the conditions required.

"...the prescribing, sale and advertising of contraception will be restricted or completely banned."

...can be. The right to privacy doesn't trump the power of the legislature to enact law. The right to privacy is only a consideration in police actions.

"The 4th amendment does not invalidate these laws."

That's right. " If the right to privacy as enshrined in the constitutional penumbras meant what Griswald decided, we would not have laws against cocaine, child pornography, or prostitution, all activities similarly private."

Since the concept is only a figmentary element of fantasy used as a con, only the con artist can determine what it applies to. They very well may apply it to these things depending on what purpose, or outcome they intend.

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